### COURT OF APPEALS DECISION DATED AND FILED August 17, 2023

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1044 Cir. Ct. No. 2021CV192 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

N ATIONAL C OLLEGIATE S TUDENT L OAN T RUST 2007

- 4,

P LAINTIFF - A PPELLANT ,

V .
H EATHER R. S ELDAL ,
D EFENDANT - R ESPONDENT .

APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON , Judge. Reversed and cause remanded

.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.No. 2022AP1044

2 ¶ 1 GRAHAM, J. National Collegia te Student Loan Trust 2007

- 4 (“t he
Trust ”) appeals a circuit court order certifying a class of Wisconsin residents 1 with
claims for declaratory relief under W IS

. S TAT

. § 806.04 and claims based on
violations of the Wisconsin Consumer Act, W IS

. S TAT

. § 427.101 et seq

. The
Trust contend s that the court ’s order does not comport with W IS

. S TAT

. § 803.08(11) (a) , which requires a decision on class certification to set forth all

reason ing and all evidence relied upon in support of the decision . The Trust also argues that it is entitled to an order denying class certification on the ground that the class representative, Heather Seldal, has no t proven the statutory prerequi sites
for class certification.

¶ 2 We conclude th at the circuit court ’s class certification order does not comport with W IS

. S TAT

. § 803.08(11) (a) because the court did not provide reasoning and analysis or point to evidence in the record to support its findings regarding a t least some of § 803.08’s prerequisites for certif ication

. However, we reject the Trust ’s argument that it is entitled to an order denying class certification
as a matter of law . As a result, we reverse the class certification order and remand to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

¶ 3 This class action lawsuit arose as a response to an action that the
Trust commenced a gainst Seldal to collect on a student loan that she took out from

1 W ISCONSIN S TAT

. § 803.08 (2021

- 22) specifically addresses procedural requirements for class actions filed in Wisconsin, and § 803.08(11)(b) provides that the court of appeals “shall hear an appeal of an order granting or denying class action certification” provided that “ a notice of appeal is filed within 14 days after entry of the order.”

All references to the Wisconsin Statutes are to the 2021

- 22 version.No. 2022AP1044

3 PNC Bank . The focus of Seldal’s class action is her allegation that the Trust has
been unlawfully attemptin g to collect payments from a class of borrowers whose
loans originated with multiple national banks including PNC

. ¶ 4 The following facts p ertain to Seldal’s loan, and are undisputed
unless otherwise noted. I n 2007, Seldal applied for an educational loan from PNC
via a form credit agreement. PNC disbursed a $5,500 check , which Seldal endorsed and deposited.

¶ 5 The parties d ispute what happened to the ownership and right to
collect on Seldal’s loan. The Trust alleges that shortly after disbursement, Seldal’s loan, a long with the educational loans of hundreds of other borrowers , were “ sold, assigned , and transferred ” to the Trust through a “ two

- step ” student loan
securitization transaction alleged ly arranged by Firs t Marblehead Corporation

. Seldal disputes that the loans were assigned to the Trust , and she further alleges
that , even if they were , the Trust cannot prove that fact with admissible evidence.

¶ 6 According to the Trust , Seldal’s loan was serviced by A merican
E ducation Services (“AES” )

. 2 I t is undisputed that i n 2009, Seldal filed for bankruptcy and identified “ AES /nct” as the creditor of her student loan

. She later requested and received forbearances on the loan from AES. Then, between 2012 and 2016, Seldal s ubmitted loan payments to AES.

¶ 7 The last payment that Seldal made on the l oan was on October 31,
20 16. After Seldal ceased making payments , servicing was purportedly

2 AES is sometimes referred to as PHEAA, but we do not use that acronym in this opinion.No. 2022AP1044

4 transferred from AES to Transworld Systems, Inc. (“TSI”) , which is the default
loan servicer for the Trust . According to the Trust , TSI then became the custodian
of the records for Seldal ’s loan and had “real

- time access to AES’ [s] sys tem of record.”

¶ 8 A fter TSI exhausted it s efforts to collect on the loan, the Trust
commenced this action against Seld al. In her answer, Seldal a lleged that the Trust could not prove that it had been assigned her loan because it lacked evidence of
the chain of title , or because any evidence it had to prove the assignment was
in admissi ble

. ¶ 9 Seldal then counterclaimed against the Trust on behalf o f a p utative
consumer class

. 3 She alleged that the Trust had violated W IS

. S TAT

. § 427. 1 01 et
seq. by attempting to collect , or actually collecting , on loans taken out by Seldal
and the other putative class m embers , knowing that it did not have the legal right
to do so

. Seldal also sought a declaration under W IS

. S TAT

. § 806.04 that the Trust “lacks the right to enforce or to collect the debts they allege they own from Seldal
and the Consumer Class and Subclasses .” 4

¶ 10 The Trust moved for summary judgment on its claims against Seldal,

as serting that there was no genuine dispute of material fact that it had been assigned her loan. Some of the arguments and evidence presented in the summary judgment briefing are pertinent to the p arties’ argum ents about class certification;

3 Because this lawsuit ori ginated with the Trust ’s collection action, the circuit court filings designate Seldal as a “counter

- plaintiff” and the Trust as a “counter

- defendant.”

4 Seldal also included a counterclaim under W IS

. S TAT

. § 100.18 (the Wisconsin Deceptive Trade Practice s Act), which the circuit court dismissed on summary judgment. Seldal has not sought leave to appeal the dismissal of this claim , and we discuss it no further.No. 2022AP1044

5 t herefore, although we are not reviewing the circuit court’s summary judgment decisions in this appeal, we summarize aspects of those proceedings that may be
relevant to th e class certification decision

. ¶ 11 T he Trust asserts that it is one of several statutory t rusts that were formed between 2004 and 2007 for the purpose of offering securities that are backed by student loan assets

. 5 It further contends that it acquired multiple pools of private student loans , including a pool containing Seldal’s loan , in a single
transaction that took place on September 20, 2007. According to the Trust , t hat
transaction , which it describes as a “two

- step sale , ” proceeded as follows

. ¶ 12 In the first st ep of the transaction, First Marblehead Corporation arranged for more than a dozen nation al banks including PNC to assign pools of private student loa ns to an intermediate depositor called N ational Collegiate Funding (“Funding ”) . All of the se loan s had been originated and guaranteed by
T he Educational Resource Institute (“TERI”), and they were assigned to Funding through eighteen separate contracts referred to as “ p ool s upplement ” a greements.
¶ 13 The individual loans that the banks purportedly assigned to Funding were not specifically identified in the text of the p ool s upplement a greements

. I nstead, each pool supplement agreement referred to a poo l of loans that was being assigned , and t he in dividual loans in each pool were identified in documents designated as “ schedules ” to each pool supplement agreement. According to the

5 At the time Seldal moved to certify a class of consumers, she also moved to certify a class of defendants consisting of the Trust and all of the other national collegiate student loan trusts that were formed between 2004 and 2007 for the purpose of offering asset

- backed securities comprised of educational loans. The circuit court denied the mot ion to certify a class of defendants , and Seldal h as not appealed that decision.No. 2022AP1044

6 Trust , PNC assigned Seldal’s loan to Funding via an agreement we refer to as the

“ PNC P ool S upplement A greement, ” and Seldal’s loan is specifically iden tified on

“ Schedule 1 ” of the PNC P ool S upplement A greement.
¶ 14 In the second step of the transaction , Funding assigned the eighteen different pools of loans to the Trust pursuant to a “Deposit and Sale Agreement.”
A ttached to t hat a greement were schedules identify ing the pools of loans that Funding sold to the Trust

. According to the Trust , Schedule A to the Deposit and
Sale Agreement identifies the pool of PNC loans that includes Seldal’s loan. 6

¶ 15 The Trust ’s summ ary judgment materials made the following representations about the origination and servicing of Seldal’s loan. TERI had processed Seldal’s loan at its origination on PNC’s behalf, and it also processed all
of the oth er loans that the Trust obtained in th e two

- step sale described above.
F ollowing disbursement, TERI sent the origination records for Seldal’s loan t o the
Trust ’s loan servicer, AES . AES had been appointed a custodian of Seldal’s loan
documents , and it serviced her loan until it was charged off in June 2017. Following Seldal’s default, the servicing of the account was transferred to T SI,
which i s the post

- default servicer for the Trust

. Pursuant to a default se rvicing agreement, TSI became the record custodian for the Trust with respect to the
accounts TSI services, including Seldal’s, and it may refer loans to law firms for
collection actions on behalf of the Trust

.

6 Seldal disputed this allegation during the summary judgment proceedings. She asserted that the type of loan she had taken out from PNC is not described in the PNC Pool Sup plement Agreement or Sch edule A to the Deposit and Sale Agreement.No. 2022AP1044

7 ¶ 16 To support its summary judgment motion, the Trust submitted the affidavit of Bradley Luke, w ho averred that he was “the Director of Operations

an d a records custodian at [TSI]

. ” Luke averred that Seldal’s loan and the other
loans that were part of the PNC pool were assigned from PNC to Funding through
the PNC P ool S upplement A greement

. Luke further av erred that Funding assigned all rights, titl es, and interests in Seldal’s loan to the Trust through the Deposit and Sale Agreement. Luke attached a purported copy of th e PNC P ool
S upplement A greement to his affidavit . He also attached a purpor t ed “excerpt” of
Schedule 1 of the PNC Pool Supplement A greement , which allegedly showed that Seldal’s loan was identified in Schedule 1

. Finally, he attached a purported copy
of the Deposit and Sale Agreement and a copy of its Schedule A , which , as noted above, purportedly iden tified the pool of PNC loans that allegedly included Seldal’s loan

. ¶ 17 Seldal op posed the Trust ’s motion. She argu ed that Luke’s affidavit
and attached exhibits were not admissible as evidence

. 7 In the alternative, Seldal

7 Seldal advanced a number of arguments r egarding the admissibility of Luke’s affi davit and its attached exhibits

. We do not resolve these issues in this appeal, and note them here only because they are related to the parties’ arguments r egarding class certification.
First, Seldal asserted that Luke lacked person al knowledge of his averments , as required by W IS

. S TAT

. § 802.08(3). Seldal argued that Luke could not have had personal knowl edge of the PNC Pool Supplement A greement , its Schedule 1 , or the Deposit and Sale Agreement because he first began working for TSI ’s predecessor in 2010, after the transaction occurred. Therefore, she argued , the copy of the PNC Pool Supplement A gree ment , the “excerpt” of Schedule 1, and the copy of the Deposit and Sale Agreement were all inadmissible hearsay. Second, she argued that the exhibits to Luke’s affidavit were not admissible under the hearsay exception for records of a regularly conducted acti vity, see W IS

. S TAT

. § 908.03( 6), because they were created and maintained by entities other than TSI and Luke lacked personal knowledge of how the records were made, whether they were made at or near the time of the event recorded by a person with persona l knowledge, and whether the records were prepared in the course of those other entities’ regularly conducted activities. Third, she challenged the authenticity of several of the exhibits. Finally, Seldal asserted that the Trust could not rely on Luke’s testimony to show the contents of (continued)No. 2022AP1044

8 argued that the Trust ’s evidence, even if adm issibl e, failed to prove that her loan was assigned to the Trust

. 8

¶ 18 The circuit court held a hearing on the Trust ’s motion for summary judgme n t on its claims against Seldal. D uring th e hearing, the court struck at least some portions of Luke’s affidavit, including the exhibits that were attached to the
affidavit . According to the court, at least some aspects of Luke’s affidavit
constituted inadmissible hearsay that failed to satisfy t he hearsay exception for records of a regularly conducted activit y under W IS

. S TAT

. § 90 8.03(5). Having
determined that the Trust failed to satisfy its burden of proof, the court denied its motion for summary judgment on its claims against Seldal

. 9

Sch edule 1 to the PNC Pool Supplement A greement under W IS

. S TAT

. § 910.02, which, with certain exceptions, requires an “original” to prove the content of a writing

.

8 Again, we do not resolve these issues here and note th em only because they are pertinent to the arguments about class certification. Seldal argued that the fact that the Trust possessed her credit agreement with PNC did not prove that her loan had been assigned to the Trust

. She argued that , in order to prove its status as an assignee , the Trust had to present evidence showing that it had been as signed her specific loan, and that it w as not enough to present agreements such as the PNC Pool Supplement A greement or the D eposit and Sale Agreemen t that showed it had been assigned pools of unidentified loan s. Finally, Seldal argued that t he Trust had not and could not produce an authenticated and admissible copy of Sch edule 1

. She disputed the authenticity of the “excerpt” of Schedule 1 that was attached to Luke’s affidavit and purportedly showed that her loan was assigned as a part of the PNC Pool S upplement A greement , and she argued that, without Schedule 1, the Trust could not prove that it had been assigned the right to collect on her loan.

9 Although we are not reviewing the circuit court’s summary judgment decisions, we make the following observations because they may be helpful to the proceedings follo wing remand.

We observe that during the circuit court proce e dings the discussion of the he arsay rules by the court and parties may not fully account for a distinction that the case law appears to recognize between assignment documents, which can take the form of contracts between assignor and assignee, and loan servicing records, which are ofte n used to document activities including communications and payments and may be admissible as records of regularly conducted activities. See Dow Fam. , LLC v. PHH Mortg. Corp. , 2013 WI App 114, ¶ 19 , 350 Wis. 2d 411, 838 N.W.2d 119 (concluding that a copy of a note was not hearsay because it was not being (continued)No. 2022AP1044

9 ¶ 19 Following this decision, the Trust moved for summary judgment on Seldal’s counterclaims. It argued th at Seldal’s counterclaims fail as a matter of
law beca use they hinge on an allegation that the Trust knew or should have known
that it would be unable to prove that it had the right to collect on Seldal’s loan. According to the Trust , the evidence it submitted regarding the purported assignment of Seldal’s loan “clearly demonstrate[d]” that, at the very least, at the
time the Trust attem

pted to collect on Seldal’s loan, it believed that it had been assigne d the loan and would be able to prove that status

. ¶ 20 As an initial matter, the Trust argued that , for purposes of defending against Seldal’s counterclaims, the evidence it submitted was not hearsay because
it was being presented to show that the Trust had reason to believe that it own ed Seldal’s loan , and not for the trut h of the matter s asserted

. The Trust also
submitted a revised affidavit from Luke with the PNC Pool Supplement
A greement , a pu rported copy of Schedule 1 , and the Deposit and Sale Agreement
attached as exhibits

. Luke averred that TSI ’s predecessor had received the PNC Pool Supplement A greement ’s Schedule 1 in a digital Excel file format on
N ove mber 14, 20 1 2 , that the Excel file had been stored on se rv ers controlled by
TSI ’s predecessor and then TSI , and that the Excel file had not been modified at any time since its receipt

. According to Luke, Exhibit D to his affidavit was a

offered to prove the truth of the matters asserted but instead as evidence of a legal act); Bank of America NA v. Neis , 2013 WI App 89, ¶49, 349 Wi s. 2d 461, 835 N.W.2d 527 (holding that “contracts, including promissory notes, are not hearsay when they are offered only for their legal effect , not ‘ to prove the truth of the matter asserted ’ ” (citation omitted ) ); cf. Central Prairie Financial LLC v. Ya ng , 2013 WI App 82, ¶13, 348 Wis. 2d 583, 833 N.W.2d 866 (considering whether documents including a bill of sale that substantiated the assignment of an account were admissible under the hearsay exception for records of regularly conducted activities).

We also observe that some of the parties’ arguments may conflate issues of authenticity and the foundational requirements for the hearsay exception in W IS

. S TAT

. § 908.03(6).No. 2022AP1044

10 copy of the Excel file that constituted Schedule 1 , which h ad been converted into a
PDF f ormat and redacted

. ¶ 21 T he Trust also argued that i t had presented additional proof in the
form of affidavits from employees of other entities involved in the all eged assignment of Seldal’s loan to the Trust

. It argued th at these affidavits authenticate the PNC Pool Supplement A greement, its Sched ule 1, the Deposit and
Sale Agreement , and its Schedule A , and that the affidavits also confirm that Seldal’s loan was included in the chain of assignments from PNC to the Trust

. 10

¶ 22 Seldal opposed the Trust ’s motion for summary judgment on her
counterclaims , and she also filed a motion for summary judgment on the Trust ’s claims against her. 11 In her briefing , Seldal argued that the Trust had yet to provide an authenticated or admissible copy of Schedule 1, and she reasserted her argument that the Trust could not authenticate Schedule 1 or establish that it was admissible based on an exception to the h earsay rule

.

10 The Trust provided the affidavit of Cindy Dehls and Dori Costello. Dehls averred that she was the vice p resident for PNC Student Lending who signed the PNC Pool Supplement A greement on PNC’s behalf. Schedule 1 was not attached to Dehls’ affidavit, but she averred that she had reviewed the PNC Pool Supplement A greement and Sc hedule 1 and confirmed that Seldal’s loan was included in the transaction between PNC and Funding

. Costello averred that she was an employee of Wilmington Trust Company, who was an “owner trustee” for the Trust , which executed the Deposit and Sale Agreement on the Trust’s behalf . Among other things, Costello averred that Schedule A to the Deposit and Sale Agreement identifies the pool of PNC loans listed on the electronic Schedule 1 to the PNC Pool Supplement A greement.

11 With respect to her motion for summary ju dgment on the Trust ’s claims , Seldal also filed a copy of a d eposit and sale agreement between Funding and a different trust, the National Collegiate Student Loan Trust 2007

- 3 . Seldal claimed that this agreement showed that the National Collegiate Student Loan Trust 2007

- 3 had purportedly been assigned the same PNC poo l of loans as the Trust that alleged ly included Seldal’s loans and was assigned to the Trust

.No. 2022AP1044

11 ¶ 23 The circuit court held a hearing on the parties’ motions. Following the hearing, th e court denied the Trust ’s motion as to S eldal’s counterclaims for declaratory relief and under the Wisconsin Consumer Act , and it also den ied Seldal’s motion for summa ry judgment on the Trust ’ s claims against her. Neither

t he transcript of the hearing nor any other document memorializing the court’s
rational e is included in the record on appeal

. ¶ 24 Around the same time, Seldal also filed the motion to certify a class
and subclass of consumers that is the subject of this appeal. The motion explained that, if ce rtified, the class and subclass would seek a declaration that the Trust “lacks the right to enforce or to collect the debts they allege they own from Seldal ”
and other class members and monetary penalties and damages for , among other things, violations of the Wisconsin Consumer Act, W IS

. S TAT

. § 427.101 et seq. The class would comprise “[a]ny Wisconsin resident whom [the Trust ] directly , or indirectly through their authorized agent(s) communicated with alleging that a debt was owed.” The subclass would consist of “[a]ny member of the [general class] who pa id [the Trust ], directly or indirectly, any amounts in respon se to any communication t hat alleged they owed a debt.”

¶ 25 In her certification motion, Seldal asserted that her claims for declaratory and monetary relief were the same as those of the putative class
members , and that they all hinge on o n e common predominant question

— w hether
the Trust could produce admissible evidence proving that it had been assigned the class members’ loans. She further argued that the Trust could not produce such
evidence for a reason that was common to all class members . A ccording to Seldal,
the Trust does not have employees of its own , and instead relies on servicers to
collect on loans and maintain custody of its records. Seldal alleged that neither AES nor TSI could produce a copy of the schedules that had purportedly beenNo. 2022AP1044

12 attached to the PNC Pool Supplement A greement or the other pool supplement agreements that were purportedly assigned to the Trust through the Deposit and
Sale Agreeme nt.
¶ 26 The Trust opposed Seldal’s motion. Among other things, i t asserted
that Seldal’s counterclaims were inap propriate for class

- wide resolution because several key determinations would require individualize d inquiries in “ every instanc e ,” including whether the Trust does not own the loans taken out by each

consumer ; w hether the Trust knew or should have known as much; whether the

consumer w as injured as a result of the Trust ’s conduc t; and the amount of
da mages that should be awarded

. The Trust claimed that , for each member of the putative class , a jury would need to consider the loan’s chain of title documents ; testimony from third parties ; and the conduct of each consumer, including whether
the consumer made payments, whether the cons umer disputed the debt, and
whether the Trust ’s ownership of the loan at issue had already been adjudicated

. ¶ 27 Fo llowing a hearing , the circuit court grante d Seldal ’s certification
motion

. See W IS

. S TAT

. § 803.08(3) , (11) (requiring a written cla ss certification order). In its written order, the court certified a class consisting of “any Wi s co nsin resident, defined by resid ence at an address in Wisconsin, w ho [the Trust ] claimed owed money on an assigned loan a s of J anuary 27, 2021, the date of the
commencement of this action. ” The court also certified a subclass consisting of

“ any person who meets the above th re e factors ” and “ w ho paid money to [the
Trust ] in response to any communication that alleged they owed a de bt. ” The
court identified the class claims and issues as follows: “whether the class is entitled to monetary damages under W IS

. S TAT

. § 427.101, et seq

. and /or declaratory relief under W IS

. S TAT

. § 806.04. ” The court appointed Seldal as the
class repres entativ e and Seldal’s counsel as class counsel.No. 2022AP1044

13 ¶ 28 In certifying the class, the circuit court declined to address the history of the loan assignments discussed above , stating that “[t] he parties’
financial histories will not be material to this decision.” I t concluded that Seldal
had established the elements required by W IS

. S TAT

. § 803.08(1) and (2)(c), which
include co mmonality and predominance

. Regarding commonality, the court
determined that there was one question that was common to the class

— w hether
the Trust “unlawfully attempt [ ed ] to collect on [ the class members’ ] loans”

— and
that that common question could be answered “ ‘ in one strok e ’ by a factual inquiry
into [ the Trust ] ’s beli efs and intentions regarding the assignment of the cl ass members’ loans. ” Regarding predominance, the court determined that the common issues regarding the assignment of the se loans would predominate, even if, as the Trust predicts, “other documents may be necessary” to pr ove the class members’ claims.

¶ 29 The Trust appeals the class certification order

. We provide

a dditional detail s regarding th at order as necessary below.

DISCUSSION

¶ 30 The Wisconsin requirements for class certification are codified in
W IS

. S TAT

. § 803.08

. That statute has recently been revised , both by our supreme

c ourt and also by the state legislature, to harmonize Wisconsin law with federal
class certification standards. See S. C T

. O RDER 17

- 0 3 (eff. July 1, 2018) ; 2017 Wis. Act 235. The Wisconsin Supr eme C ourt has directed us to look to federal case law applying Rule 23 of the Federal Rule s of Civil Procedure when interpreting our state statute

. See Harwood v. Wheaton Franciscan Servs., Inc. , 2019 WI App 53, ¶ 21 , 388 Wis. 2d 546, 933 N.W.2d 654 (citing Judicial C ouncil Committee Notes, 2017, § 803.08 , and stating that the “intent was to craft aNo. 2022AP1044

14 Wisconsin class action rule that tracks as closely as possible federal practice so that Wisconsin courts and practitioners can look to the well

- developed body of
federal case law interpreting [Rule] 23 for guidance ”).

¶ 31 The substantive standards for certifying a class are found in W IS

. S TAT

. § 803.08 (1) and (2)

. Subsection (1) requires the party requesting
certification to establish, by a preponderance of the evidence, three facts about the proposed class and class representative ( referred to as “ numerosity, ”

“ commonality, ” and “ typicality ” ) and a f ourth fact about the party’s ability to represent the class (referred to as “ adequacy ” ). 12 See Harwood , 388 Wis. 2d 546, ¶23 (citing § 803.08(1)) ; Wal

- Mart Stores, Inc. v. Dukes , 564 U.S. 338, 3 49 (2011) (commonly referred to as Dukes ) ; see also Fotusky v. ProHealth Care,
Inc. , 2023 WI App 19, ¶11, 407 Wis. 2d 554, 991 N.W.2d 502 (explaining bur den of proof is a preponderance of the evidence).

¶ 32 If the par ty requesting certification satisfies its burden on these four prerequisites, that party must also prove that the putative class action conforms to
one of the class actions enumerated in W IS

. S TAT

. § 803.08(2) . As relevant h ere, the party must prove “that the questions of law or fact common to all class members predominate over any questions affecting only individual members, and that a class action is superio r to other available methods for fairly and efficiently

12 Specifically, W IS

. S TAT

. § 803.08(1) requires that: (a) “[t] he class is so numerous that join der of all m embers is impracticable”; (b) “[t] here are questions of law or fact common to the class”; (c) “[t] he claims or defenses of the representative parties are typical of the claims or defenses of the class”; and (d) “[t] he representative parties wil l fairly and adequately protect the interests of the class. ”No. 2022AP1044

15 adjudicating the controversy.” See § 803.08(2)(c). 13 These two additional prerequisites are referred to as “ predominanc y ” and “ superiority. ” Harwood , 388 Wis. 2d 546, ¶ 24.

¶ 33 The de cision to grant or deny a motion for class certification is
committed to the circuit court’s discretion. Id. , ¶¶5, 41 ; Hammetter v. Verisma Sys., Inc. , 2021 WI App 53, ¶9, 399 Wis. 2d 211, 963 N.W.2d 874. A court properly “exercises its discretion when i t considers the facts of record and reasons its way to a rational, legally sound conclusion.” Shannon v. Mayo Clinic Health Sys.

– Nw. Wisconsin Region, Inc. , 2021 WI App 49, ¶12, 398 Wis. 2d 685, 963 N.W.2d 115 (citing Harwood , 388 Wis. 2d 546 , ¶ 41 ).

¶ 34 In some insta nces, if a circuit court fails to set forth its reaso ning to support a discretion ary decision , an appellate court will independently review the
record and se arch for reasons to sustain the court’s exe rcise of discretion. Se e , e.g. , State v. Pharr , 115 Wis. 2d 334, 343, 340 N.W. 2d 498 (1983). Here, however, the circ uit court’s certification decision is governed by the standard set forth in W IS

. S TAT

. § 803.08(11) (a) , which requires “ a written decision setting
forth all reaso ns why the [class] a ction may be maintained and describing all
evidence in support of its determination.” 14 Whether the court’s certification

13 “T he matters pert inent to these findings include : 1. T he class members’ interests in individually controlling the prosecution or defense of separate actions[;] 2. T he extent and nature of any litigation concerning the controversy already be gun by or against class members[;] 3. T he desirability of concentrating the litigation of the claims in the particular forum[;]” and “4. T he likely difficul ties in managing a class action.” W IS

. S TAT

. § 803.08(2)(c).

14 The standard in W IS

. S TAT

. § 803.08(11)(a) was added to the statute by the legislature in 2017 Wis. Act 235, which became effective in April 2018. Although the Harwood court acknowledged these legislative revisions to the statute, it de termined that the revisions had no bearing on its analysis of the issues in that case. Harwood v. Wheaton Franciscan Servs., Inc. , 2019 WI App 53, ¶4 n.4, 3 8 8 Wis. 2d 546, 933 N.W.2d 65 4.No. 2022AP1044

16 decision satisfies that standard is a question of law we review de novo. Shannon , 398 Wis. 2d 685, ¶13. B ecause our review of a decision certifying a class action is governed by this legislative directive, we will not search the record for reasons to
affirm the decision if we conclude that it does not comport with § 803.08(11) (a)

. See id. ; see also Cowan v. Cave En ters. Operations, LLC , No. 2 021P1441, unpublished slip. op. ¶¶15

- 18 ( WI App Jan. 24, 2023) (remanding to the circuit court because the court’s order failed to set forth all reasoning and all evidence in support of its certification ruling, despite a substa ntial evidentiary record). 15

¶ 35 T he Trust makes two overarching requests in this appeal

. First, it
asks us to reverse the certification order on the ground that the circuit court did not fully set forth its reasoning or the eviden ce it relied upon , and therefore the court’s
order does not comport with W IS

. S TAT

. § 803.08(11) (a)

. Second, the Trust asks

us to conclude that Seldal is not entitled to certification as a matter of law on the ground that her motion fails to satisfy the prerequ isites for certification found in § 803.08 (1) and (2)

. ¶ 36 As to the first request, Seldal does not meaningfully dispute that the
circuit court’s order lacks reasoning and evidence, bu t she contends that the issues

are simple, the court “fu lly understood the claims before it ” based on its prior
review of the cross

- motions for summary judgment, and the record evidence
satisfies all prerequisites for class certification found in W IS

. S TAT

. § 803.08

. Therefore , Seldal asks us to affirm the court’s exercise of discretion despi te any deficiency in its written order.

15 We cite this authored unpublished opinion pursuant to W IS

. S TAT

. R ULE 809.2 3(3) for its persuasive value.No. 2022AP1044

17 ¶ 37 For reasons we explain below , we conclude that the circuit court’s
written decision d oes not comport with W IS

. S TAT

. § 803.08(11) (a)

. In our review
of the dec ision, we a re unable to discern the court’s “rigorous analysis” in its
consideration of at least some of § 803.08(1)’s prerequisites , and ultimately its

r easons fo r certifying the class and subclass

. See § 803.08(11) (a) ; General Tel. Co of Sw. v. Falcon , 457 U.S. 147, 161 (1982) ( requiring a rigoro us analysis to support a class certification decision ). The gaps in the court’s analysis are most pronounced in its discussion of commonality, § 803.08(1)(b), and predominance , § 803.08(2)(c ), and these gaps may affect the c ourt’s an alysis of other prerequisite s as well.

¶ 38 As noted, W IS

. S TAT

. § 803.08 (1)(b) requires “questions of law or
fact common to the class ” as one prerequisite for certifying a class action. However, a s the United States Supreme Court observed in Dukes , “[t]hat language is easy t o misread , since ‘a ny competently crafted class complaint literally raises common questions.’” Dukes , 564 U.S. at 349 ( citation omitted). Thus, the raising of common questions alone does not suf fice , s ee id. , nor does the mere fact that all
of the class members have experienced a violation of the same provision of law ,

see i d. at 350. The focus of the commonality inquiry turns on whether , as a result of the common questions, there is “ cause to believe that all class member s ’ claims
can be productively litigated at once

. ” Harwood , 3 8 8 Wis. 2d 546, ¶25.

¶ 39 For the class’s claims to be productively litigated at once, they “ must depend upon a common contention that is c apable of cl ass

- wide resolution. ” See Dukes , 564 U.S. at 350 ; Bell v. PNC Bank, Nat. Ass’n , 800 F.3d 360, 374 (7 th Cir. 2015). A common contention is capable of c lass

- wide r esolution if it can be proven or disproven with common evidence, and a determination of its truth orNo. 2022AP1044

18 falsity will resolve an issue that is central to the validity of each class member ’s
claim s

. See Harwood , 3 8 8 Wis. 2d 546, ¶25 (citing Dukes , 564 U.S. at 350).

¶ 40 Turning to the certification decision in thi s case , as noted , the circuit
court certified two claims for class

- wide resolution : (1) a claim seeking a declaration that the Trust lacks the right to enforce or to collect the debts of each
class member ; and (2) a claim that the Trust violated the Wisconsin Consume r Act by , among other things, attempting to collect a debt from the class members that it knew or ought to have known it could not prove it owned

. See W IS

. S TAT

. § 427.104 (1) (j) (providing that, when attempting to collect an alleged debt arising
from a consumer credit transaction , a merchant may not “[c]laim, or attempt or threaten to enforce a right with knowledge or reason to know that the right does not exist”)

. ¶ 41 In finding commonality, the circuit court identified on e question that

w as common to the class claims

— w hether the Trust “ unlawfully attempt [ ed ] to colle ct on [ the class members’ ] loans. ” According to the court, “this common question may be answered ‘ in one stroke ’ by a factual inquiry into [the Trust ]’s beliefs and intent regarding the class members’ loans. ” The court summarily rejected the Trust ’s arguments that the class members’ claims would require an individualized inquiry into each loan’s specific chain of assignment , stating that it
was “ not pers uaded that these differences between c lass members defeat commonality,” and that “[i]t does not matter t hat other questions specific to
individual class members will remain unanswered [.] ”

¶ 42 We conclude that the circuit court’s discussion of commonality does

not comport with W IS

. S TAT

. § 803.08(11) (a)

. The common question identified by
the circuit cour t

— whether the Trust unlawfully attempted to collect on the classNo. 2022AP1044

19 members’ loans

— is nothing more than a highly generalized description of a claim
under the Wisconsin Consumer Act

. See W IS

. S TAT

. § 427.10 4 (1)(j) (forbidding a merchant from enforcing or attempting to enforce a right that it knows or has

re ason to know does not exist). Yet , as discussed above , the mere fact that the
class members all raise the same legal claims and must prove the same elements to prevail is not sufficient to establish commonality. See Dukes , 5 64 U.S. at 350; Bell , 800 F.3d at 374

. Instead, the class’s claims must depend upon a common
contentio n or theory , which must be provable with common evidence and which , if proven, must resolve an issue central to the claims of all class members

. See Bell , 800 F.3d at 374 ; Harwood , 3 8 8 Wis. 2d 546, ¶25 (citing Dukes , 564 U.S. at 350).

¶ 43 Here, t he circuit court did not explain its reasons for concluding that
th e common question it identified could be answered “‘in one stroke ’ by a factual inquiry into [ the Trust ] ’s beliefs and intent

. ” And, absent additional explanatio n , we have reason to questi on whether that common question could be answered in one stroke, at least at the level of generality that the question was posed by the

court

. Based on our review of the allegations and evidence in the record, it appears that Seldal is alleging that the Trust ’s collection efforts were u nlawful for
a number of reasons related to the alleged lack of assignment s , or the lack of proof
thereof. Some of these reasons might be capable of class

- wide resolution, and
others may not. The circuit court’s discussion of commonality lac ks the reasoning and analysis required by W IS

. S TAT

. § 803.08(11)(a), and the certification order
must be reversed on that basis.

¶ 44 So too regarding the related inquiry into whether the common questions “predominate ove r any questions affecting only individual members.”
See W IS

. S TAT

. § 803.08(2)(c). The circuit court’s discussion of predominance isNo. 2022AP1044

20 also overly generalized and i nadequate, likely be cause the court did not zero in on specific common questions or contenti ons that are cap able of class

- wide
resolution.

¶ 45 Wisconsin courts have observed that “[t]he guiding principle behind predominance is whether the putative class’s claims arise from a common nucleus
of operative facts and issues.” Hammette r , 399 Wis. 2d 211, ¶23 (citation omitted). Here, the circuit court’s ruling did not describe any common nucleus of operative facts and issues from which it found Seldal’s claims and the class’s claims to arise. Nor did the court explain why it believed the issues common to the class would predominate over individua lized questions, or what evidence it relied upon to find as much. Therefore, the court’s discussion of predominance
also lacks the reasoning and analysis required by W IS

. S TAT

. § 803.08(11)(a), and
this is an additional reason that the certification order must be reversed. 16

¶ 46 With its second request on appeal, t he Trust asks us to go one step further. It argues that Seldal has not prove n commonality and predominance for any putative class , a nd that we should direct the circuit court to e nter an order denying class certification on that basis

. The Trust contends that the putative class’s claims are inherently individualized b e cause they are contractual in nature, that individualized inquiries would predominate over common questions, and

a ccordingly, that there is no reason to think that a class

- wide proceeding would generate common answers about the loan assignments. Here , the class certified by the court encompasses members whose loans originated with more than a dozen

16 The parties raise a number of other arguments that we decline to address because our conclusion , that the circuit court’s rulings on commonality and predominance fail to satisfy W IS

. S TAT

. § 803.08(11)(a) , is di spositive.No. 2022AP1044

21 banks, and w ere th en pooled into eighteen different pool supplement agreements before they were assigned to the Trust through the Deposit and Sale Agreement. Therefore, the Trust argues, determining whether any specific class member ’s loan was assigned to it will require an individualized inquiry into the chain of assignment for that specific loan, and will not ge nerate any answers for class members whose loans originated with a different bank and were pooled into
differe nt pool supplement agreements.

¶ 47 This argument by the Trust illustrates some of the nuances that should have been explored in the circuit court’s certification decision. Indeed, to the extent that the court determined that the historical details of the assignment s were not “m aterial to [its] decision, ” the court erred as a matter of law. However,

as we now explain, w e are not persuaded tha t the Trust is entitled to an order denying certification on the ground that Seldal cannot show commonality and predominance as p r er e quisit e s to certification

. ¶ 48 To prevail on its claims, a putative class would have to prove that
the Trust has no right to collect on the class members’ loans. And, to pre vail on at least one of its claim s under the Wisconsin Consumer Act , a putative cl ass would also have to prove that, despite knowing or having reason to know that it did not
have that right , the Trust attempted to collect on th e class members’ loans

. S ee W IS

. S TAT

. § 427.10 4 (1)(j). The parties agree that the claims at issue here turn on whether the Trust lacks the right to collec t on the class members’ loans. 17

17 The parties dispute their respective burdens of proof on the class’s claims. At times, Seldal appears to contend that it is the Trust ’s burden to prove it is an assignee. By contrast, the Trust argues that it is the class’s burden to prove that the Trust is not the assignee, citing Gwiazda v. LVNV Funding, LLC , No. CV 22

- 00698, 2022 WL 4280478 (E.D. Pa. Sept. 15, 2022) (concluding that no reasonable jury could find for plaintiff on her Fair Debt Collection Act claims (continued)No. 2022AP1044

22 ¶ 49 As noted above, the Trust may lack that right for an y number of reasons. Some of these reasons may be unique to Seldal

. 18 Other reasons may be

com mon to some or all of the loans allegedly assigned in the PNC Pool Supplement A greement, but not common t o the entire class that the circuit court
certified , which includes seventeen other loan pool s originated by different banks. Finally, some reasons identified by Seldal may be common to all of the individuals whose loans were allegedly included in any of the pools

. ¶ 50 Seldal cannot demonstrate commonality unless she identifies a

reason or reasons that are common to all members of a d efined class as to why the
Trust does not have the right to coll ect on the ir loans

. See Dukes , 564 U.S. at 350. To that end, Seldal must allege and point to evidence supporting the existence of

some uniform flaw in the chain of assignment of all of the loans, or some uniform
flaw in the Trust ’s maintenance or retention of documents related to all of the clas s members’ loans . And this uniform flaw must be c apable of proof by evidence that
is common to t he class, rather than through individuali zed attack s upon the Trust ’s attempts to introduce evidence of the chain of assignm ent for each class member ’ s loan

.

agai nst purported assignee because the mere fact that the purported assignee could not prove its assignee status in a prior coll ection lawsuit , without more, did not mean that the purported assignee had not been assigned the loan ). We need not and do not resolve this dispute in this appeal, and we note it here only because it will likely resurface duri ng the proceedings on remand.

18 For example, Seldal has alleged that her loan was not included in any pool of PNC loans assigned to t he Trust because the type of loan that she took out is not described in the PNC Pool Supplement Agreement or Schedule A to the Deposit and Sale Agreement, and also that another deposit and sale agreement purports to assign the same pool of loans that alleg edly includes her loan to a different trust.No. 2022AP1044

23 ¶ 51 Based on the record before us, we cannot conclude as a matter of
law t hat Seldal failed to satisfy this burden. Contra ry to the Trust ’s assertions,
Seldal has arguably advanced at least some reaso ns that may be common to the members of a putative class as to why the Trust allegedly has no right to collect on
the loans . These alleged reasons may be c ommon to a putative cl ass because the y are allegedly rooted in the structure of the agreements comprising the two

- step sale a s well as the terms of servicing agreements , and they may be provable
without individu alized inquiries into each loan’s specific chain of assignment. See
W IS

. S TAT

. § 803.08(1)(b). And the circuit court may conceivably be able to determine that such common questions would “predominate over any questions affecting only individual members.” See § 803.08(2)(c). The court did not engage
with the se allega tions or the evidence at the time it issued the decision that is the subject of this appeal , but that does not mean that Seldal’s theories and evidence fail to support commonality and predominance as a matter of law

. 19

CONCLUSION

¶ 52 For the reason s explained above, the circuit court’s failure to provide reasoning and analysis in its discussion of commonality and predominance , and its failure to point to evidence in support of its findings, requires that we reverse its certification order, and we remand for the court to conduct additional class
certification proceedings

. We provide the following guidance regarding those proceedings on remand . First, t he court may consider whether in its jud gment it is

19 On remand, the circuit court and parties may wish to consider W IS

. S TAT

. § 803.08(6), which provides that, “when appropriate, an action may be brought or maintained as a class action with respect to particula r issues.” This sect ion appears to be based on Rule 23(c)(4) of the Federal Rules of Civil Procedure , which allows a court to certify an “issue class” i n which only particular issues in the underlying controversy a re to be resolved collectively.No. 2022AP1044

24 appropriate to decide Seldal’s motion based on the submissions that have already been filed, taking argument from the parties on this point as it deems appropriate, or whether it is appropriate to allow or require the parties to submit addition al briefing and evidence. Second, we offer no opinion on how the issues surrounding commonality and predominance should be resolved on the merits following
remand , nor do we weigh in on the other prerequisites for class certification. On remand, the circ uit court will be free to exercise its discretion on these issues as it sees fit, as long as any decision certifying a class complies with W IS

. S TAT

. § 803.08(11)(a).

By the Court.

— Order r eversed and cause remanded

.

Not r ecommended for publication in the official reports.